TMI Blog1990 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the process of court, Mr. Jamal Mohamed, learned counsel appearing on behalf of the petitioner, contended that the complaint does not allege that the petitioner, while he delivered the returns for assessment, either knew or believed to be false, or did not believe to be true, that the contents therein provided scope for evasion of tax. Similarly, as far as the offence under section 276C is concerned, learned counsel contended that mere nondisclosure will not amount to evasion and that relevant facts must be stated in the complaint to indicate that there was wilful attempt to evade tax. In other words, he submitted that the factual foundation, to prove the ingredients of the offence, does not form part of the complaint and, on this sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting year ended on March 31, 1981, relevant to the assessment year 1981-82, the petitioner had filed the return of income on November 17, 1983, admitting an income of Rs. 7,855, consisting of income from property and business income. During the course of assessment, the Income-tax Officer, on perusing the bank pass book of the accused bearing Savings Bank Account No. 2529, in the State Bank of Mysore, Madras-1, found that the accused had deposited a sum of Rs. 10,000 on July 3, 1980, and Rs. 70,000 on July 25, 1980. When questioned, the accused explained that the above deposits were made out of the realisation of the sale proceeds of his house site at Santhome High Road, Madras. He also stated that the property was purchased by him on Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C of the Act will take in non-disclosure as well, depending upon the facts and the mens rea of the petitioner. The Explanation to section 276C which deals with examples of wilful attempt to evade any tax is only "inclusive" and does not catalogue all instances of wilful evasion. It may still be that clauses (iii) and (iv) of the Explanation may be attracted on facts. Learned counsel appearing for the petitioner wanted to rely upon the appellate order in which the petitioner had challenged the initial assessment made by the Income-tax Officer, but I did not permit him to do so, for, at this stage, the court will be concerned only with the allegations made in the complaint and the contents of the documents, if any, accompanying the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, in the prosecution evidence itself, to get the advantage claimed. However, learned counsel for the respondent would contend that there was no order under section 273A of the Act in this case. It will be too difficult to hold that this prosecution had either been launched with an oblique motive or that there is no reasonable possibility of the case ending in a conviction. At this stage, the unchallenged facts found in the complaint, which, of course, may be challenged during the trial, do indicate the commission of the offences alleged. The appellate order of assessment is subsequent to the filing of the complaint and, therefore, neither the petitioner nor the respondent could not have anticipated the nature of the appellate order. I a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial facts of a case also quash the proceeding even though it may be at a preliminary stage." That was a case of breach of trust which, as observed by the Supreme Court, can give rise to a civil wrong as well as a criminal offence. There will be certain situations where it will be predominantly a civil wrong, and may or may not amount to a criminal offence. On the facts, the Supreme Court quashed the prosecution. In the instant case, I am satisfied that the court had not been utilised for any oblique purpose or that the chance of an ultimate conviction is bleak, even if the facts stated in the complaint were to be accepted. Learned counsel for the respondent referred to the judgment in Friends Union Oil Mills v. ITO [1977] 106 ITR 571 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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